Sisters 4-year-old Aubrey Berry and 6-year-old Chloe Berry were found dead in their father’s apartment in Oak Bay on Christmas Day. Their father Andrew Berry is charged with two counts of second-degree murder in their deaths. On Tuesday, defence counsel began to deliver its closing arguments. (Submitted photo)

Defense says burden of proof not met in double murder case against Victoria father

More than five months after the trial started, on Tuesday, defence counsel begun an impassioned campaign of closing arguments in defense of Oak Bay father Andrew Berry.

Berry, 45, is accused in the murders of his daughters Chloe, 6, and Aubrey, 4, found dead from multiple stab wounds in his Beach Drive apartment on Christmas Day, 2017. The girls’ bodies were discovered that evening around 6 p.m. along with Berry, who was found in his bath tub with wounds on his neck and chest.

Starting mid-April the trial has seen dozens of witnesses take the stand, including first responders, a blood spatter analyst, the girls’ mother Sarah Cotton and Andrew Berry himself.

Berry has testified that he was entangled in gambling debts and owed thousands to a Chinese loan shark. Berry told the court room that the loan shark had a key to his apartment and his henchmen had visited several times before the murders to store and collect packages.

On Tuesday, defence counsel Kevin McCullough started his closing arguments by hammering in on reasonable doubt and presumption of innocence – reiterating multiple times that it’s Crown’s responsibility to prove Berry’s guilt.

Seemingly incredulous at what he called a “completely circumstantial” Crown case, McCullough insists the only thing the Court knows with certainty is when and where Berry and the girls were found “and a lot of ambiguous evidence.”

“Everything else is uncertain,” he said.

McCullough’s closing arguments centre around his problems with the Crown’s case: Time of death, motive, forensics, the timing of an alleged suicide note, and the nature of Berry’s injuries.

McCullough told the jury to question the Crown’s timeline, which puts the murders of the two girls around 8 a.m. on Christmas morning. He says witness testimony of ‘thunderous noises’ heard from Berry’s unit can’t be corroborated, and should be subject to the jury’s doubt.

He referenced testimony from Cotton, who said she had gone around the building with Brenda Berry on Christmas Day, frantically knocking on windows and ringing the buzzer of Berry’s unit in an attempt to find her daughters, who Berry was supposed to have returned to her care. Cotton told the court she did not look into the windows.

But McCullough said her evidence is not correct – that she did in fact look into the bedroom windows, and didn’t see her daughters there because Chloe and Aubrey hadn’t been killed yet.

He said the reason Cotton wouldn’t tell the court the bedrooms were empty “is because she does not want to help Mr. Berry.”

“It’s obvious, it’s just obvious,” McCullough said, hitting the stand in front of him with emphasis. “Ms.Cotton loathed Mr. Berry. She loathed him for years,” he said. “When it comes to Ms. Cotton please look at it from that angle.”

Berry’s defense attorney doubled down on his issues with Crown’s forensic evidence, poking at the methods and behaviour of first responders on the scene, who he described as careless and inexperienced.

Experts determined that the girls’ last meal occurred six to 12 hours prior to their deaths, and both were described as stiff by first responders at the time they were discovered. McCullough insisted that Crown had not produced any forensic evidence concluding the time or nature of their murders. There were no fingerprints taken from the alleged murder weapons, he argued, and no DNA from Chloe or Aubrey found on Berry’s clothing.

Referencing Berry’s fragmented memories of the moments after he was allegedly stabbed, McCullough said that if his client was going to come up with a story, “he would have come up with a far better one than that.”

McCullough discussed motive too, asking the jury to think critically about a suicide note found on Berry’s kitchen table. In the note, Berry wrote to his daughters: ‘listen to me’ and ‘protect your sister.’

“That should leave you with no doubt … he was wanting to make sure the girls were protected,” McCullough said.

Online searches found on Berry’s computer showed he had looked up methods for a ‘peaceful suicide’ – searches McCullough says are at odds with his injuries on Dec. 25, 2017.

“Looking at Mr. Berry’s injuries, could there be a less peaceful way to die than stabbing yourself in the throat?” McCullough posed to the jury.

In order to find Berry guilty, McCullough said the Crown must prove that his client is lying.

“When the accused takes the stand and says he didn’t do it and gives you detailed evidence, the Crown better prove he’s a liar – Not maybe, but that he definitely is,” he said. “It’s not good enough to call him a liar and then do nothing to prove it.”